HomeMy WebLinkAbout20070168 Ver 2_Staff Comments_20100319Mcmillan, Ian
From: Barnett, Kevin
Sent: Friday, March 19, 2010 4:23 PM
To: Mcmillan, Ian; Kulz, Eric
Subject: 07-0168ver2.add info. review.AROcom ments
Attachments: 07-0168ver2.GrandviewPeaks.Comments. 03182010.pdf
Ian and Eric:
I have reviewed the submitted addinfo. ARO recommends the Director Deny this application as the project fails to show
it will meet water quality standards.
They have the cart before the horse. IE: The want to build it then show it'll meet standards. The process is the other
way around.
Please see comments attached.
--kevin
"The time is always right to do what is right"
Martin Luther King, Jr.
Kevin Barnett - Kevin.Barnett@ncdenr.gov
North Carolina Dept. of Environment and Natural Resources
Asheville Regional Office
Division of Water Quality - Water Quality Section
2090 U.S. 70 Highway
Swannanoa, NC 28778
Tel: 828-296-4500
Fax: 828-299-7043
E-mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be
disclosed to third parties.
Nd -ov (o
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CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
March 11, 2010
Mr. Ian McMillan
NC Division of Water Quality
1650 Mail Service Center
Raleigh, North Carolina 27699
p@20wo B.
tJAR 1 2 2010
RE: Request for More Information MANDSAWSTM rtWWATMPAWA
Grandview Peaks
McDowell County, North Carolina
Action ID SAW-2007-200-359; DWQ Project # 07-0168 Ver. 2
Dear Mr. McMillan,
Please reference the letter dated February 15, 2010 (Attachment A) sent by the NC
Division of Water Quality (DWQ) in response to the permit application submitted by
ClearWater Environmental Consultants, Inc. (CEC), on behalf of Mr. Todd Black of Fall
Creek Land Company. The permit application requested written authorization for the
impacts associated with development of the Grandview Peaks residential subdivision and
associated infrastructure including amenities lakes. The comments provided by the DWQ
are listed and discussed below.
DWQ Comment #1: "On page 17, the applicant states, `The proposed lakes will not be
located in streams that contain migrating or spawning fish. ' Please provide
documentation of any studies or data collected that indicate that no fish species spawn in
the stream segments proposed for impacts."
After review of the permit application, CEC understands that the statement made
on page 17 of the permit application is unclear. The application attempted to
paraphrase a guideline from the NC Wildlife Resources Commission (WRC)
Instream Impoundment Guidelines (July 2006). The guideline states: "Upstream
and downstream passage of aquatic organisms may be warranted and should be
reviewed on a case by case basis and viewed in the context of the watershed
condition." The intent of the statement in the application was to say that the dams
will not be located in streams that contain fish that necessitate migration to spawn
(such as species targeted for fish passage structures including salmon, trout,
sturgeon, striped bass, herring and shad). Starr n ha -s c & t 1 - rttain
spawning fish;?howevert-,becauseAhe y-,do,m of-have tvinl??,in order-tor-spawrft
presence of -a dam,-will?not-inhibit=thoseFspeciesr: Because of this conclusion, the
dam will not be designed with a fish passage structure.
718 Oakland Street
Hendersonville, North Carolina 28791
Phone: 828-698-9800 Fox; 828-698-9003
www,cwenv.com
ti?4
s ti3`1
Mr. Ian McMillan
03.11.10
Page 2 of 8
DWQ Comment #2: "Also on page 17, the applicant states that if at some point during
their proposed 5 -year monitoring program that if water quality parameter measurements
are found to be unsatisfactory by the DWQ, the applicant will submit a contingency plan
to return water quality parameters to satisfactory levels. How [does the applicant]
propose to do this and what will this contingency plan consist of?"
4,
`'"1 The dam and impoundment will be designed to maintain existing water quality
\; standards. It is the intent of the applicant to have a working and functioning
e impoundment that does not violate water quality standards. However, if water
quality standards are exceeded a contingency plan will be submitted to return
water quality standards to acceptable levels. At this time, i"mpossiblehrahe,
applies to-dder4nine-which4farty-water=qua'lity`standaris ld"be-viclated?nd
Ao what.degree. Without guidance from the DWQ regarding which water-quality--)
standards are of the greatest concern, the applicant can only make general t- tract M! cl,
statements about activities that may be used to maintain and bring water quality
standards back into compliance. Th- edams will?•be.-designed-withltftrdttnj"at ` t1f)1? ?' d
acrates,?water-released?-from -the darn: Because of this ythe ppksarrt d s t tx
cipate.that -dissoluedoxyg®rn
ati pararnetars willFbe-violated, The dam designs are
also going to include a cold water release. Installation of a cold water release will _ Ajv peaf?;,; v
decrease and/or eliminate increased water temperatures downstream of the lakes.
6ltr?.1, ._
Dissolved gasses can increase due to nuisance vegetation growth. In this
situation, herbivore fish may be introduced to aid in control of nuisance
vegetation. Violation of chlorophyll-a standards may be -corrected through the ?.:'A,
?,. implementation of restrictive covenants which limit or restrict the use of
fertilizers and other nutrients for lawn maintenance, if that is found to be the
r cause.
Of Additionally, the applicant is proposing a Lake Management Plan prepared by a ?e7
h., t h ,;apt Certified Lake Manager. The plan will include discussions and recommendations UtN? ??y5?
`#t for the items such as sediment, depth, water quality, vegetation, algae, fisheries,,
boating types and usage, capital improvements, and maintenance.
Recommendations for maintaining water quality standards will be a part of this
plan.
The dams have not been designed and a Lake Management Plan has not been
completed to date. The applicant feels that these tasks will take a significant
expenditure of resources and is not prepared to complete these tasks without some
assurance that the project will be approved. Requesting a contingent 401 Water
Quality Certification for the project is similar to previously approved lake projects
such as Traditions and the Ridge at South Mountain.
DWQ Comment #3: "The applicant proposes to do a combination of on-site
preservation and paying into EEP. The total mitigation need is 7, 580 stream credits.
[The applicant is] proposing preservation of 62,000 LF of stream at a 9:1 to provide
6,885 stream credits, and paying the balance to EEP for 695 feet. The 2003 Interagency
Stream Mitigation Guidelines indicate the ratio for preservation is 10:1. At 10:1,
C*J
Mr. Ian McMillan
03.11.10
Page 3 of 8
preservation would yield 6,200 stream credits. Combined with the proposed purchase of
695 credits, [the applicant] still has a deficit of 685 credits. The total credits obtained
from EEP should be 1,380 credits."
The mitigation plan proposed by the applicant is in accordance with DWQ
guidelines and the Stream Mitigation Guidelines (2003). DWQ mitigation
requirements regarding the construction of impoundments are clearly stated in the
DWQ memo dated August 19, 2002. The memo states: "Compensatory stream
mitigation will not be required by DWQ for the impact due to flooding." The
mitigation plan as proposed meets DWQ criteria. Dam impacts at the site total
695 linear feet and the applicant is proposing payment into the EEP for 695 linear
feet to compensate for these impacts.
F.. Additionally, the Stream Mitigation Guidelines (2003) specifically state in Table
2 on page 13 that the mitigation ratio required for preservation is 2.5:1 to 5:1.
s The applicant has proposed a 9:1 ratio which is above and beyond what is
required by the guidelines; the applicant has proposed an additional 27,575 linear
feet (5 miles) of preservation, beyond what is in compliance with the mitigation
guidelines, for this project.
The applicant believes the mitigation proposed in the permit application meets or
exceeds all guidelines set forth by the US Army Corps of Engineers (Corps) and
the DWQ.
DWQ Comment #4: "During the pre-application meeting held at the DWQ-Asheville
Regional Office on November 30, 2009, the applicant stated that post construction
maintenance of the proposed dams and impoundments will be the responsibility of the
Grandview Peaks Homeowners Association. Since the applicant has acknowledged that
the proposed dams will be considered "High Hazard" dams by the Division of Land
Resources-Dam Safety Unit, this office will need to review very specific details of this
arrangement, especially in light of the dam failure at Balsam Mountain."
The applicant is aware of the Dam Safety Unit's permit requirements. Upon
issuance of the DWQ water quality certification, the applicant will submit plans,
specifications, design data, and appropriate calculations prepared by a
professional engineer to the Division of Land Resources DLR for review and
approval through the Dam Safety Unit. The DWQ is encouraged to communicate
and work closely with the DLR during the review and approval process. To
facilitate this communication, the applicant will copy the DWQ on all
correspondence to the DLR relating to the construction of the dam.
DWQ Comment #5: "For the record, it should be noted that the DWQ returned the
previous application because the applicant's agent did not submit the information DWQ
had requested by the extended date the agent had requested. Additionally, it is the
understanding of this Office that the applicant chose to withdraw his previous permit
application because if he had not, the USA CE was moving towards denial of the permit
Mr. Ian McMillan
03.11.10
Page 4 of 8
request. Faced with these facts, it is unclear how the applicant believes this virtually
identical permit request will be approved. Please explain how this permit request is
significantly different from the previous one."
The applicant is aware that the DWQ returned a previous application for this
project. The applicant is also aware that there were communication issues
between the applicant's previous consultant and the DWQ. Following the return
of the application by the DWQ, the applicant met individually with Mr. Scott
Jones of the Corps. Based on a number of factors, the applicant made the
decision to withdraw the still pending application with the Corps and begin the
process again.
The previous application was not returned and withdrawn because of the nature of
the project. It was returned and withdrawn because the Corps and DWQ were not
provided with answers to pertinent project questions; this is an important
distinction.
Although the project is very similar, the application and information provided is
vastly different. CEC identified major deficiencies in the previous permit
application and correspondence and has worked diligently with the applicant to
provide information not included in the previous application. Although not all of
the differences can be identified in this letter, the most important differences are
discussed below.
Purpose and Need - Defining the project purpose is critical to the evaluation of
any project. The previous permit application indicated a project purpose that only
included the construction of on-line impoundments. This type of purpose
statement is unacceptable because it significantly limits the alternatives analysis.
CEC has significantly redefined the purpose and need statement on behalf of the
applicant. Additionally, the previous permit application tried to cloak the lakes
true purpose (aesthetics and recreation) behind fire suppression, irrigation, and
fisheries creation. CEC and the applicant have represented the ponds as they are
intended to function in the development.
Alternatives Analysis - A complete alternatives analysis is required for permit
review. The previous application did not include a complete alternatives analysis
for this project. The newly submitted permit application includes an extensive
alternatives analysis that discusses the residential development as well as different
types of amenities.
Mitigation - A mitigation plan that offsets project impacts must be proposed.
The previous application failed to include a mitigation plan in accordance with
Corps and DWQ guidelines. The newly submitted permit application includes a
clear and concise mitigation plan that is in compliance with mitigation guidelines
set forth by the Corps and DWQ.
Mr. Ian McMillan
%03.11.10
Page 5 o1`8
?1 l Water Quality Sampling - The DWQ requested analytical monitoring based on
the Predictability Study Protocol for Sampling Referenced Impoundments. In-
lieu of the Predictability Study, the applicant's previous consultant proposed a
form of watershed modeling. The DWQ and previous consultant could not come
to an agreement regarding this approach. The newly submitted permit application
43 -4` includes a plan for water quality monitoring and sampling following the
Predictability Study guidelines along with data from two reference
?
Y impoundments.
The applicant expects the DWQ and the Corps to review this application on its
own merit.
DWQ Comment #6: "Please submit a specific minimum water release plan for the
proposed dam. The plan must include a written explanation of the specific discharge rate
and mechanism to provide for each required release. The plan must also include any
design specifications, details and calculations to show that the release shall be achieved
in the given conditions. Specifically, this Office would like the applicant to propose
minimum water release for this project, other than minimum 7Q10 which may not be
sufficient to protect downstream water quality. The plan shall also include monitoring
that ensures compliance. The plan and any associated facilities, once approved, must be
in place and implemented upon completion of the dam."
The design for the dams has not been completed to date. The applicant feels that
this task will take a significant expenditure of resources and is not prepared to
complete this task without some assurance that the project will be approved. This #
approach to the project is similar to previously approved lake projects such as V
Traditions and the Ridge at South Mountain.
As requested by the DWQ, a minimum water release plan will be included with
the dam designs. The DWQ has recently issued several 401 Water Quality
Certifications and in those projects the 7Q10 minimum flows have been
acceptable to the DWQ. The applicant questions the request to deviate from that
standard. If some other low flow requirement is to be required by the DWQ, the
applicant requests further information and guidance from the DWQ regarding this
requirement.
DWQ Comment #7: "Please provide plans at the 1 "=100' scale clearly showing which
lots are sold and please place building envelopes on all lots that contain wetlands or
streams."
A permit map indicating which lots have been sold is included for review (Figure''`"
1). Based on a conversation between Ms. Rebekah Newton of CEC and Mr. Ian
/?ct``
McMillan of the DWQ on February 26, 2010, the applicant will not be providing ?.?
building envelopes for each lot with streams and wetlands. As the project is
proposed, 82% of streams and 68% of wetlands are being preserved on site. The
majority of streams and all wetlands not preserved include those reaches and areas
Mr. Ian McMillan
03.11.10
Page 6 of 8
that are proposed for impact. After factoring in impacts, 91% of remaining
streams and 100% of remaining wetlands will be preserved on site. Impacts will
not be allowed in these areas and home owners will be required to abide by a
setback of 30 or 60 feet adjacent to preserved streams as shown on the permit
map. Because stream buffers are already indicated on the permit map, providing
building envelopes does little in the way of providing additional information for
the project. The vast majority of unpreserved streams are located at the entrance
to the development. These waters are classified as "C" waters by the DWQ.
Waters with a class "C" designation and wetlands are not required to have buffers.
Under DWQ regulations, property owners are not required to abide by a set back
in these areas. With that in mind, providing a building envelope on these lots,
which would become a part of the permit authorization, constitutes upland
preservation without credit to the applicant. All lots within the development are
buildable without additional impacts to streams and wetlands. If the DWQ has
concern about specific lots, the applicant can address those lots specifically.
DWQ Comment #8: "As noted by the US Fish and Wildlife Service in the previous
permit application, the Grandview Peaks website does not mention any onsite amenity
ponds and the only reference to lakes is a mention of nearby lakes. This in light of the
current completed sales of many of the onsite lots, it appears amenity lakes are not a
selling point of this development."
Lakes are very much a selling point of this development for the reasons stated in
the application; however, because the lakes have not been approved for
construction and the applicant cannot ensure their construction, officially
advertising them on the website might be considered misrepresentation and might
be illegal. Prospective customers who visit the development are informed about
the lakes as were people who have already purchased lots in the subdivision.
Regulations governing interstate land sales limit what may be advertised about a
development to the general public. To keep lot owners up to date on the lake
proposal and approval process, a copy of the permit application is available at the
sales office located within the development. Although they cannot be and are not
officially advertised, the lakes are an integral part of this community.
DWQ Comment #9: "Page 34 of the application narrative states, '...when the lake is the
primary amenity, lot values become heavily dependent on its presence, and the value of
lots on or in close proximity of the lake see a substantial increase in value.' How did
[the applicant] determine this? This position runs contrary to a recent study conducted
by the University of Wisconsin-Madison - Department of Agricultural & Applied
Economics, dated July 2007."
CEC and the applicant appreciate the information provided by the DWQ in
regards to the aforementioned study from the University of Wisconsin. As is
common in academia, journal articles and studies with refuting information can
often be found to counter findings that are made regarding a specific subject. The
University of Wisconsin Staff Paper is no different. A quick internet search of
i
?e
Mr. Ian McMillan
03.11.10
Page 7 of 8
?f journal articles yielded two very similar articles by Notie H. Lanford, Oklahoma
State University, and Lonnie L. Jones, Texas A&M University entitled
w, ?"Recreational and Aesthetic Value of Water Using Hedonic Price Analysis" and
"Marginal Price of Lake Recreation and Aesthetics: An Hedonic Approach" both
dated 1995. These articles conclude that housing around a lake commands a
premium price and that price falls, in some cases as much as 40% (depending on
distance) as houses move away from a lake.
In-lieu of the applicant and the agencies continuing in an exchange of information
that supports or refutes academic and journal articles, the applicant offers the
s , following information. Because of the cost of construction, lakes would not be
proposed unless there was significant benefit to their construction, and the cost
could be recovered. An analysis of online data for parcels in the vicinity of
Cardinal Lake in Transylvania County yielded the following information. There
are 36 parcels adjacent to Cardinal Lake. Tax record information included sale
prices for 27 of the 36 parcels. The mean sale price for homes or lots
immediately adjacent to the lake is $1,789,984, with a high cost of $3,500,000
-= and a low cost of $5,000. For comparison purposes, 36 parcels were chosen that
were not immediately adjacent to Cardinal Lake but that were immediately
h adjacent to the golf course at the Toxaway Country Club. These parcels are of
similar size to those around the lake. Tax record information included sale prices
w for 23 of the 36 parcels. The mean sale price for these homes or lots, according to
data provided by Transylvania County is $321,021, with a high cost of $1,250,000
C, and a low cost of $31,000. For a second comparison, 36 parcels of similar size to
those around the lake and adjacent to blue-line streams were chosen. Streams
adjacent to chosen parcels included the Toxaway River, unnamed tributaries to
Cardinal Lake, unnamed tributaries to Lake Toxaway, Indian Creek, and unnamed
tributaries to Indian Creek. Multiple streams were chosen because not one
tributary yielded 36 lots or homes for comparison. Tax record information
included sale prices for 27 of the 36 parcels. The mean sale price for homes or
lots immediately adjacent to the tributaries, according to data downloaded from
Transylvania County is $175,025, with a high cost of $900,000 and a low cost of
$7,500. Although this price comparison is not scientific in nature, it does indicate
that prices for lots and homes adjacent to the lake have a higher cost. The cost
spread would be more significant provided the homes and lots used for
comparison were not adjacent to an amenity (i.e. golf course).
The applicant is confident that this comparison could be done for any community
comprised of a lake and yield similar results. Please note, McDowell County and
Rutherford County parcel data is not available for download online and at the
writing of this letter, requested parcel data from McDowell and Rutherford
County was not supplied.
may, ?, '
ors ? ?
0
b
Mr. Ian McMillan
03.11.10
Page 8 of 8
DWQ Comment #10: "Please provide an inventory of imperviousness surfaces in each
drainage area. The inventory should include all proposed building footprints, road,
driveways, sidewalks, gravel surfaced area, amenity areas, etc. A Stormwater
Management Plan (SMP) must be provided for any drainage areas that exceed 24
percent imperviousness. For each BMP, provide a completed BMP Supplement Form
with all the required items."
For the purpose of determining impervious surface area, several worst case
assumptions were made; the calculation assumes 1) all houses are ranches and1}
have a footprint of 4,000 square feet, 2) all lots are 1 acre, 3) all driveways are
paved and 12 feet x 200 feet (2,400 square feet), and 4) roads are 20 feet in widths
With these assumptions, the following calculations have been made:`
Building 2,055 lots x 4,000 sq. ft. 189 acres
Driveway 2,055 lots x 2,400 sq. ft. 114 acres / ?Ss
Roads 20 mi x 20 ft wide 49 acres
Total Impervious Area 352 acres
Given the assumptions and calculations above, the total percentage of impervious
area at the site would be 17%. This is a highly bias figure because only 760 lots
are proposed (ranging from approximately 1 acre to 14 acres) for the development
and ranch-style homes with a square footage of 4,000 square feet are extremely
unlikely (homes of this size would be constructed on multiple levels reducing the
footprint on the ground and size of the roof); however, the worst case scenario is
demonstrated here to show that a density of almost 3 times what is proposed
would still not yield impervious surface areas close to 24%.
The applicant believes the information submitted in this package addresses all issues set
forth by the DWQ in their letter dated February 15, 2010. Should you have any questions
or comments concerning this project please do not hesitate to contact me at 828-698-
9800.
Sincerely,
-IC. 0 MA-? CkA_
Rebekah L. Newton
Project Biologist
R. Clement 'd Xe,??
Principal